JUDGMENT
Dawson Miller, C.J.
1. This is an appeal under Clause 10 of the Letters Patent by the defendants Nos. 1 to 3, who are the principal defendants in the suit, from the decision of a single Judge of this Court, dated the 25th July 1918, whereby he overruled the decision of the District Judge of Manbhum and restored that of the Munsif.
2. The plaintiffs and the pro forma defendants were proprietors of Mauza Deli-ants. The principal defendants were tenants under them of a holding in the said Mauza. The rent having fallen into arrears, the landlords brought a suit against the tenants and in July 1909 obtained a decree in that suit. The property was put up for sale in execution of the decree and it was purchased by the landlords themselves. On the 6th May 1910 the sale was confirmed and in July of the following year the sale certificate was obtained. At that time a partition suit was pending between the plaintiffs and the pro forma defendants who were members of a joint family, and no application appears to have been made by them as auction- purchasers under Order XXI, Rule 95, of the Civil. Procedure Code to be put in possession of the holding purchased by them within 3 years of the confirmation of the sale. As a result of the partition suit, the Mauza in question, including the right to possession of the defendants’ holding, fell to the share of the plaintiffs who, on the 5th May 1916, instituted the present suit claiming khas possession of the holding against the principal defendants who were still in possession.
3. Amongst other defences, the defendants contended that the suit was barred by Section 47 of the Civil Procedure Code, the plaintiffs’ remedy being to apply for delivery of possession in the Court executing the rent decree, and that a separate suit was not maintainable. The Munsif decided all issues in the plaintiffs’ favour and granted the decree asked for.
4. On appeal, the District Judge considered that such a suit would be governed by the provisions of the Chota Nagpur Tenancy Act, 1808, and that by Sections 139 and 231 of that Act it was cognizable by the Deputy Commissioner only and ought to have been brought within one year from the date when the cause of action accrued. He treated the case, however, as one in execution of a decree and held that it was barred by Section 47 of the Civil Procedure Code as well as by Section 92 of Act X of 1859, which was in force when the rent suit was instituted, and that in either case the limitation period of 3 years had expired. The plaintiffs appealed to this Court, and the learned Judge who heard the appeal held that the suit could not be treated as an application in execution governed by Article 180 of the Limitation Act, and that as it did not relate to the execution, discharge or satisfaction of a decree, it was not governed by Section 47 of the Civil Procedure Code. He further held that the Chota Nagpur Tenancy Act had no application. In these circumstances, he held’ that the period of limitation was 12 years from the date when the sale became absolute, as prescribed by Article 138 of the Limitation Act, and restored the decree of the trial Court setting aside that of the District Judge. It is from that decision that the present appeal is brought.
5. The first contention argued before us was that the suit fell within Section 139 of the Chota Nagpur Tenancy Act and was cognizable only by the Deputy Commissioner, and that under Section 231 of the same Act the limitation period was one year from the date of the accruing of the cause of action. There are two answers. to this argument. First, the Act was not applied to Manbhnm within which district the property is situated until the 22nd November 1909, which is after the rent-decree was obtained, and it is not shewn that the application of the Act to Manbhum had any retrospective operation. Secondly, it is quite clear that none of the oases mentioned in Section 189 which are triable by the Deputy Commissioner cover the present suit. The only case relied on is that mentioned in Clause 4 of the section, viz.: ‘All suits under this Act to eject any tenant of agricultural land or to cancel any lease of agricultural land.” This is not a suit to eject a tenant or to cancel a lease. The defendants ceased to be tenants at the time when their holding was sold and their rights in the holding passed to the purchaser. Since then their status is that of trespassers, not tenants. The suit, in fact, is not one under the Chota Nagpur Tenancy Act at all and Sections 139 and 231 can have no application.
6. The appellants’ main contention, however, mas. that the case is covered by Section 47 of the Code of Civil Procedure, as it raises questions between the parties to the suit in which the rent decree was passed relating to the execution, discharge or satisfaction of that decree. Although it is by no means clear that Section 47 of the Civil Procedure Code applies to a case where the sale took place under Act X of 1859 and where the sale certificate was granted under Section 11 of Act VIII of 1865, I assume, for the purposes of this part of my judgment, that the Civil Procedure Code applies. There can be no doubt that both the plaintiffs and defendants were parties or represent parties to that suit and the only question which arises is, whether the questions for determination relate to the execution, discharge or satisfaction of the rent-decree. This is a matter about which there has been considerable controversy in the High Courts of Calcutta, Bombay and Allahabad. The importance of the question for present purposes arises from the fact that if a separate suit is not barred by Section 47 then it was instituted within time, the period for bringing such a suit being that prescribed by Article 138 of the Limitation Act, viz., 12 years from the date when the sale became absolute. If it is barred by Section 47, then the period in which the application in execution should have been made is 3 years and as the suit was not instituted within that period, it cannot now be treated as an application in execution under Section 47.
7. The decisions of the Calcutta High Court are somewhat conflicting. One of the earliest decisions is that of Kristo Gobind Kur v. Gunga Pershad Surma 25 W.R. 372 in the year 1876, which decided that the plaintiff, who was the auction-purchaser, should not be entitled to bring a fresh suit for possession as he might have enforced his rights under the decree in execution of which he purchased. The basis of the decision was that litigation might be endless if parties failed to exercise their rights under decress and were afterwards allowed to bring fresh suits for the same relief. Whilst entirely agreeing with the general principle that litigation should not be endlessly protracted, the question we have to determine is whether in the particular instance the Legislature has in fact barred the plaintiffs’ right of suit in the case before us. The decision in Kristo Gobind Kur’s case 25 W. E. 372 was followed with some hesitation by Sir R. Garth, C.J., and Morris, J., in 1881 in Lolit Coomar Bosev. Ishan Ohunder Chuokerbutty 10 C.L.R. 258. In Krishna Lall Dutt v. Radha Krishna Surkhel 10 C. 402 : 5 Ind. Deo. (n.s.) 269 decided in 1884, the Court held, where formal possession had been obtained from the Court by the auction-purchaser but had not been followed by any act of possession and so had become infractions, that a separate suit was maintainable. In 1885 the same High Court decided in the case of Iswar Pershad Gurgo v. Jai Narain Giri 12 C. 169 : 6 Ind. Dec. (N.S.) 115 that the decision in Lolit Coomar Base v. Ishan Chunder Chuckerbutty 10 C.L.R. 258 (ubi sup.) did not lay down that under no circumstances would a suit lie by the auction-purohaser who was also a decree-holder, but that so long as the remedy provided by Section 318 of the Civil Procedure Code (now Order XXI, Rule 95) was open to the purchaser, he was bound to have recourse to that section rather than to bring afresh suit. In that case it appears that at the date when the suit was instituted more than 3 years had passed from the time when possession was confirmed, and hence the remedy provided by Section 318 of the Civil Procedure Code then in force was barred by limitation. Some attempt, however, had been made to obtain possession under that section which had proved infructuous. The Court decided that there was no reason in law why the suit should not be maintained and that the purchaser’s title was not extinguished merely because the summary remedy provided by Section 318 was no longer available. On the other hand, in the case of Madhusudan Das v. Gobinda Pria Chowdhurani 27 C. 34 : 4 C.W.N. 417 : 14 Ind. Den. (n.s.) 23, decided in the year 1899, the Calcutta High Court held that proceedings for delivery of possession to the auction-purohassr after a sale in execution of a decree were proceedings in execution of the decree, and that when the application for possession is resisted by the legal representative of the judgment debtor, the question so raised came within the purview of Section 244 of the Civil Procedure Code of 1882 and must be decided under that section and not by a separate suit. Finally, in the case of Sosibhusan Mookerjee v. Radhanath Bose 25 Ind. Cas. 267 : 19 C.W.N. 835 : 20 C.L.J. 433, which was decided in 1913, the Calcutta High Court, after reviewing the authorities at some length, decided that an order for delivery of possession to the execution put chaser, who was himself the decree holder, was not an order relating to the execution, discharge or satisfaction of the decree nor was it one arising between the parties to the suit or their representatives merely because the decree holder happened to be the execution purchaser. For the latter proposition reliance was placed upon the earlier case of Nana Kumar Boy v. Golam Chunder Dey 18 C. 422 (F.B.) : 9 Ind. Dec. (N.S.) 282 where it was held that an order under Section 312 of the Code of 1882 setting aside an execution sale cannot be treated as an order under Section 244 of the same Code because the decree-holder happens to be the auction-purchaser. The Court,after reviewing the conflicting decisions of the Calcutta High Court, followed the decision of a Full Bench of the Allahabad High Court in Bhagwati v. Banwari Lal 1 Ind. Cas. 416 (F.B.) : 31 A. 82 : 6 A.L.J. 71 : 5 M.L.T. 185, which affirmed the principle that a decree-holder whether holding a decree for sale under a mortgage or a simple money decree, who purchases at a sale held in execution of such decree property belonging to his judgment-debtor is in the same position as would be any other purchaser at an auction sale held in execution of such a decree. It seems clear therefore, that the weight of authority in the decisions of the Calcutta Hight Court appears to be in favour of the view that questions concerning delivery of possession to an auction purchaser at a sale in execution of a decree, whether he be a decree-holder or a stranger to the suit, are not questions relating to the execution of the decree.
8. The Allahabad High Court by the Fall Bench decision just cited have clearly settled this question against the contention of the present appellants.
9. The Bombay High Court, however, has taken a different view. In the case of Sadashiv Mahadu v. Narayan Vithal 11 Ind. Cas. 937 : 35 B. 452 : 13 Bom. L.R. 661 a Full Bench of that High Court decided that a mortgagee decree-holder, who purchased the property ordered to be sold in execution of his decree, was not entitled to bring a separate suit for possession against the mortgagors but was limited by Section 47 of the Civil Procedure Code to his remedy under Order XXI of the Code.
10. In this connoting state of the authorities it would have been necessary for us to exercise an independent judgment, but for the fact that, so far as this Court is concerned, the point appears to have been substantially decided by a Fall Bench ruling in the case of Haji Ablul Gani v. Raja Ram 35 lnd. Cas. 468 : I P.L.J. 232 (F.B.) : 20 C.W.N. 829 : 3 P.L.W. 62. The immediate question for determination in that case was, whether an appeal lies from an order passed under Rule 95 of Order XXI of the Civil Procedure Code. An appeal would lie only if the decision appealed from came within the provisions of Section 47, and it was necessary for the Court to decide this question in order to determine whether an appeal would lie. In that case the respondents had obtained a money decree against the appellant and purchased certain property of the appellant which bad been ordered to be sold in execution of the decree. Possession was obstructed by the appellant, and the respondents applied under Order XXI, Rule 95, to be placed in possession of the disputed property. The respondents obtained an order from which the appellant sought to appeal. The Court, after reviewing the authorities above-mentioned and many others, unanimously decided that questions relating to the possession of property purchased by the decree-holder under the circumstances stated were not questions relating to the execution, discharge or satisfaction of the decree within the meaning of Section 244 of the Code of 1882 or Section 47 of the present Code. The principle upon which that decision was based appears to me to govern the present suit and I think that this appeal must be dismissed with costs.
11. I only wish to add that I have had an opportunity of reading the judgment about to be delivered by my learned brother and I concur with him in the reasoning by which he arrives at an independent conclusion that the questions raised in this suit are not questions relating to the execution, discharge or satisfaction of the decree.
Jwala Prisad, J.
12. This is a Letters Patent Appeal from the decision of a single Judge of this Court, dated the 25th July 1918, reversing the decision of the District Judge of Purulia (Manbhum), dated the 22nd June 1917, and restoring that of the Munsif, dated the 6th Marah 1917.
13. The defendants Nos. 1 to 3 are the appellants before us. They had held in village Delikhana, Pergana Manbhum, the lands in suit as their jote kamai holding. The plaintiffs and the pro forma defendants as landlords of the 16 annas of the said Mouzi obtained a decree, Exhibit 4, for rent against the principal defendants Nos. I to 3 for Rs. 64 15-10 on 2lst July 1909, and in execution of the said decree they purchased the holding of the appellants on 4th April 1910, The sale was confirmed on 6th May 1910 and the sale certificate, Exhibit 3, was obtained on 11th July 1911, but on account of there being a partition suit No. 223 of 1911 pending between the plaintiffs and the pro forma defendants, the head member of the family neglected to take cut delivery of possession through the executing Court.
14. By the aforesaid partition suit the entire Mouza with the said lands of the principal defendants in suit was allotted to the plaintiffs. The plaintiffs, therefore, brought the present suit against the appellants for recovery of possession on 5th May 1916, in the Court of the Munsif of Purulia, within 12 years of the confirmation of the auction sale.
15. The appellants, principal defendants, resisted the claim of the plaintiffs on all possible grounds. They stated that the plaintiffs received rents from them in 1318 and 1319 and recognized them as their tenants, and hence the relationship of landlord and tenant continued and existed between the plaintiffs and the appellants even after the confirmation of the sale, and, that the latter were not trespassers and hence the suit for ejectment could not lie. They also pleaded that the rent decree and the sale were collusive and not bona fide and as such were not binding upon them. These questions of fact have been set at rest by the findings of the trial Court as confirmed by the first Court of appeal and are no longer before us for consideration.
16. The appellants, however, disputed the right of the plaintiffs to institute the present suit and contended that the suit was barred by limitation. The Munsif overruled’ the contentions of the appellants and decreed the suit of the plaintiffs.
17. On appeal the learned District Judge held that under Sections 139 and 231 of Act VI of 1908 the plaintiffs’ suit was cognizable only by the Deputy Commissioner and must have been brought within one year. He further held that the plaintiffs’ remedy was to make an application for delivery of possession of the property purchased at the auction sale and that the present suit was barred by Section 47 of the Code of Civil Procedure. Treating the suit as an application in execution the Court held that the right to recover possession was barred by Section 92, which prescribes three years as the period of limitation within which a process of execution can be issued Upan the aforesaid findings the learned District Judge held that the suit was “barred by limitation besides being not maintainable in the present Court.” Accordingly he dismissed the plaintiffs’ suit.
18. On appeal by the plaintiffs to this Court, the decision of the District Judge has been upset and the suit for possession of the plaintiffs has been decreed.
19. Against the decision of this Court, the defendants Nos. 1 to 3 have appealed to as under Section 10 of the Letters Patent and contend that the decree of this Court must be set aside upon the grounds that were raised by them and accepted by the District Judge.
20. The first contention raised is that the suit of the plaintiffs was cognizable only by the Deputy Commissioner of Palamau and that the suit should have been brought within one year from the confirmation of the same. Reliance has been placed upon Sections 139 and 231 of the Chota Nagpur Tenancy Act (VI of 19C8). The latter section provides that “all suits and applications instituted or made under this Act, (Chota Nagpur Tenancy Act), for which no period of limitation is provided elsewhere in this Act, shall be commenced and made respectively within one year from the date of the accruing of the cause of action.” Section 139 enacts that the suits and applications specified therein “shall be cognizable by the Deputy Commissioner, and shall be instituted and tried and heard under the provisions of this Act, and shall not be cognizable in any other Court, except as provided under this Act.” The suits and applications referred to in Section 139 have been enumerated in Clauses 1 to 8 of the section. All these clauses relate to suits between the landlords and tenants except suits by or against the headmen of villages or groups of villages for declaration of title in or of possession of their office or agricultural land (clause 6) and suits by landlords and others in respect of the rent of land against any agents employed by them in the management of the land or the collection of rents, etc, (clause 7). The present suit for ejectment of the defendants and recovery of possession, based upon title acquired by an auction sale and on the ground that by the sale the right, title and interest of the defendants in the land was extinguished, and that they are mere trespassers, does not come under any of the aforesaid clauses of Section 139. According to the decision of a Division Bench of this Court in the case of the Tata Iron and Steel Company Ltd. v. Raghunath Mahto 45 Ind. Cas. 72 : (1918) Pat. 65 : 5 P.L.W. 199 it was pointed out that the Deputy Collector acquires special jurisdiction only in suits specified in Section 139 of the Chota Nagpur Tenancy Act and that he has no jurisdiction to try a suit not coming under any of the clauses of the said section. The learned Vakil on behalf of the appellants has failed to show that the present suit comes under any of the provisions in the Chota Nagpur Tenancy Act. Sections 139 and 231 have no application to the present suit. The suit was, therefore, cognizable by the Munsif and was rightly instituted in his Court; and was not barred by one year’s limitation.
21. On the other hand, the Chota Nagpur Tenancy Act does not seam to apply to the present case. The Act came into operation on the 11th November 1908 and was extended to Manbhum by notification dated 22nd November 1909, under Section 1, Clause (3), and does not apply to the decree Exhibit 4, which was obtained under the Rent Act (X of 1859) on the 21st July 1909. This is clear from the decree itself, which states that it was passed under Act X of 1859 and the sale certificate Exhibit 3, which states that the sale took place under the provisions of Act VIII of 1855 and that the certificate was granted under the latter Act. The learned Vakil on behalf of the appellants saw the difficulty of applying the Chota Nagpur Tenancy Act to the present case and contended that the suit is barred by the Rant Act (X of 1859). Sections. 23 and 92 of the Rent Act exactly correspond to Sections 139 and 231 of the Chota Nagpur Tenancy Act and do not bar the present suit for the reasons already stated with regard to the inapplicability of Sections 139 and 231 of the latter Act to the present case.
22. It is then contended that Section 92 of Act X of 1859, which provides that “no process of execution of any description shall be issued on a judgment under this Act after the lapse of three years from the date of judgment,” bars the present suit. This contention also appears to be unsound, inasmuch as the said section only affects the process of execution but the present suit of the plaintiffs is not a process of execution of any judgment or decree. The plaintiffs had, therefore, two remedies to obtain possession: one, by an application to the executing Court under Section 11, Act VIII of 1865, and another by a suit, and they can at their option choose the one or the other.
23. It is next contended that the proper course for the plaintiffs was to execute the sale certificate and to obtain possession through the executing Court, and that unless that remedy was exhausted the plaintiffs have no right to institute the suit to obtain possession based upon the auction sale. The sale took place under Section 7 of Act VIII of 1865 read with the Bent Act X of 1859 and the certificate was obtained under Section 11, Act VIII of 1865. This section is similar to Order XXI, Rule 95, of the Code of Civil Procedure and provides that “when the purchase-money shall have been paid in full, the officer conducting the sale shall give the purchaser a certificate in the form prescribed in the schedule annexed to the Act; and shall further, on the purchaser making an application and depositing the requisite costs, depute an officer or Amin to put him in possession of the under tenure in the customary manner and to publish the fact of the purchase to the cultivators of the land comprised therein.” The remedy given by Section 11 is not exhaustive and does not necessarily exclude the right, under the general law, of the plaintiff to recover possession of the property purchased by him at the auction sale on failure to obtain possession under Section 11. There is no provision in Act X of 1859 or in Act VIII of 1865 restricting the right of the plaintiff to institute his suit for recovery of possession, which right he undoubtedly has under Section 9 of the Code of Civil Procedure. Unless the right under the latter section mas clearly barred by any enactment, the plaintiffs’ suit is not barred at all,
24. Lastly, it is contended that the plaintiffs’ suit is barred by Section 47 of the Code of Civil Procedure. In the first place, Section 47 does not appear to apply to the rent suit in which the plaintiffs and their co sharers obtained the rent decree in execution of which the property was purchased by them. Neither Act X of 1859, nor Act VIII of 1865 nor the Chota Nagpur Tenancy Act has acted that the provisions of the Code of Civil Procedure should apply to the suits or the decrees obtained under those Acts. Section 265 clearly says that the Local Government may make rules directing that any provision of the Code of Civil Procedure shall apply to all or any classes of cases before the Deputy Commissioner. No such rule has been shown to us by virtue of which Section 47 of the Code of Civil Procedure would apply to the present case. Bent Act X of 1859 is complete in itself and provides complete machinery and rules of procedure for the suits instituted under those Acts and for the execution of decrees obtained thereunder.
25. The lower Appellate Court has, upon the authority of the case of Chaitan Patjosi v. Runja Behari 11 Ind. Cas. 207 : 38 C. 832 : 15 C.W.N. 863 : 14 C.L.J. 284, held that except, upon points expressly provided for by Act X of 1859 the procedure of the Revenue Court would be governed by the Code of Civil Procedure. That was a case in which the question was whether a judgment debtor was entitled to have the sale set aside on a deposit under Section 310A of the Code of Civil Procedure., The sale of the land in that case was not for arrears of rent due in respect of the land, and under Sections 109 and 110 of the Kent Act the sale of under-tenures “for demands other than those of arrears of rent” is held under the law applicable to such sale, i, e., under the Civil Procedure Code, and hence Section 310A of the Code applied to such a sale. That ruling has no application to the present case which would rather seem to be governed by the earlier authorities of the said Court in the case of Radha Madhub Santra v. Lukhi Narain Ray Chowdhry 21 C. 428 : 10 Ind. Dec. (N.S.) 916 and the Fall Bench decision in Nagendra Nath Mullick v. Mathura Mahun Parhi 18 C. 368 (F.B.) : 9 Ind. Dec. (N.S.) 246. The principle upon which Section 373 of the Code of Civil Procedure in the former case was not applied to bar the second suit, Section 47 of the Civil Procedure Code would not apply to decrees passed and executed and sales held under the Rant Act (X of (859). More so, when Section 47 takes away the general right of instituting a suit. Hence Order XXI, Rule 95, and Section 47 of the Code of Civil Procedure are inapplicable to the case of the plaintiffs and do not at all bar the suit Even if Section 47 did apply, the question is whether the proceedings to obtain possession* after an auction sale at which the decree-holder himself purchased the property, relate to “the execution, discharge or satisfaction of the decree.” It is clear that the section has no application to a purchaser who is not a decree-holder and that his failure to obtain possession or to make an application for delivery of possession under Order XXI, Rule 95 will not bar a suit for recovery of the property. Such a suit will be governed by Article 138 of the Limitation Act, the period of limitation for which is 12 years. No doubt a decree holder purchasing the property in execution of the decree is a party to the suit and as such all questions relating to the execution, discharge or satisfaction of the decree would come under Section 47 and will be determined under that section and not by a separate suit, But the question is whether the question relating to the delivery of possession after the sale is one that relates to the execution, discharge or satisfaction of the decree. If it does relate to the execution, discharge or satisfaction of the decree, then a separate suit would be barred and an application should, therefore, be made under Order XXI, Rule 95, the period for which is 3 years within which the application should be made. Whereas if it does not come under Section 47, then a separate suit for recovery of possession will not be barred and Article 138 of the Limitation Act will govern the suit. There has been a great conflict of decisions upon the point. The earlier decisions in Calcutta seem to favour the view that a separate suit will not lie: Vide, Kristo Gobind Kur v. Gunga Pershad Surma 25 W.R. 372 The view expressed there was, however, doubted by the Chief Justice Garth in the case of Lolit Coomar Bose v. Ishan Chunder Chuckerbuty 10 C.L.R. 258 and was distinguished in Seru Mohan Bania v. Bhagoban Din Pandey 9 C. 602 : 4 Ind. Dec. (N.S.) 1049 and Krishna Lull Butt v. Radha Krishna Surkhel 10 C. 402 : 5 Ind. Dec. (N.S.) 269 and latterly in Iswar rershad Gurgo v. Jai Narain Giri 12 C.169 : 6 Ind. Dec. (N.S.) 115. It was again acted upon in a latter decision of the Court in Madhusudan Das v. Gobinda Pria Chowdhurani 27 C. 34 : 4 C.W.N. 417 : 14 Ind. Dec. (N.S.) 23. The ruling in Sasibhusan Mookerjee v. Radhanath Bose 25 Ind. Cas. 267 : 19 C.W.N. 835 : 20 C.L.J. 433 seems to settle the point so far as the Calcutta High Court is concerned. The long course of decisions in the Calcutta High Court indicates that the balance of opinion in that Court has been strongly in favour of the view that the question relating to the delivery of possession does not relate to the execution, discharge or satisfaction of the decree and does not come under Section 47 of the present Code or Section 318 of the old Code.
26. So far as the Allahabad High Court is concerned, the view appears to have been settled by a Full Bench in the case of Bhagwati v. Banwari Lal 1 Ind Cas. 416 (F.B.) : 31 A. 82 : 6 A.L.J. 71 5 M.L.T. 185.
27. The Bombay High Court in the case of Sadashiv Mahadu v. Narayan Vithal 11 Ind. Cas. 937 : 35 B. 452 : 13 Bom. L.R. 661 has taken a different view and entirely supports the contention of the appellants.
28. The matter appears to have been settled so far as this Court is concerned by a Full Bench decision in the case of Haji Abdul Gani v. Raja Ram 35 lnd. Cas. 468 : 1 P.L.J. 232 (F.B.) : 20 C.W.N. 829 : 3 P.L.W. 62 In that case it was decided that no appeal lies from an order under Rule 95, Order XXI, of the Code of Civil Procedure. The basis of the decision is that such an order does not dispose of a question relating to the execution, discharge or satisfaction of the decree, even when the question is between the judgment debtor and an auction-purchaser who originally was the plaintiff in the suit and hence the order is not a decree within the meaning of Section 2 of the Code of Civil Procedure. Upon the principle deduced from that ruling, sec ion 47 will not bar a separate suit by a decree holder purchaser in order to obtain recovery of possession of the property purchased at the auction sale This decision seems to settle the question so far as this Court is concerned and has lately been followed in the case of Dkaninder Das v. Bahhshi Harihar Prasad Singh 48 Ind. Cas. 129 : 3 P.L.J. 571, where it was directly held that the proceedings adopted to obtain delivery of possession of the property purchased in execution of a decree do not relate to the execution, discharge or satisfaction of that decree and Section 47 of the Code of Civil Procedure has no application to such proceedings, in that case the decree-holder himself was a purchaser. We are thus relieved from the necessity of reviewing the authorities on the subject and coming to a definite conclusion as to which of the conflicting views is in agreement with the provisions of the Code of Civil Procedure. However, it may be mentioned that the execution of the decree terminates by the satisfaction of the decree, by payment thereof or the sale of the property in execution of the decree. Order XXI no doubt relates to and is headed by ‘execution of decrees and orders”, and Rule 95 relating to the delivery of possession by the executing Court to the purchaser at the auction sale is placed in that Chapter. It is, therefore, contended that the question relating to the delivery of possession also relates to the execution of the decree. Rule 64 of the said order provides that the Court executing the decree may direct that a certain property “shall be sold to satisfy the decree and that the proceeds of such sale or portion thereof shall be paid to the party entitled under the decree to receive the same.” A decree-holder can only purchase on express permission of the Court obtained under Rule 72 which provides that when the decree holder purchases the property “the purchase-money and the amount due under the decree is to be set off one against the other and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.’ It is thus clear that when a decree-holder purchases a property the decree is satisfied by the very fact of his purchase to the extent of the amount at which the property is knocked down. If the sale is good, then the execution is finished and the decree is satisfied. The question regarding the possession of the property is a question, therefore, between the Court and the purchaser, whether he be a decree-bolder or a stranger. When the executing Court having seized the property sells it, it is bound to give possession of the property to the auction-purchaser. This will be under the general law under which a vendor is bound to give possession to the vendee Rule 95 is simply a recognition of this principle and provides an easy and prompt method of obtaining possession from the Court that sells the property. The rule, therefore, has been placed in the chapter relating to the execution of decrees for the sake of convenience and in order to enable the executing Court to give effect to the auction sale. The placing of the section by no means shows that the proceeding relating to the delivery of possession should be regarded as relating to the execution of the decree. This contention, therefore, of the appellants fails.
29. The suit is not, therefore, barred by Section 47 of the Code of Civil Procedure and the limitation prescribed by Article 180 of the Limitation Act, which relates to applications made under the Code of Civil Procedure has no application to the suit. The suit will, therefore, be governed by Article 138 of the Limitation Act and having been brought within 12 years of the auction sale is not at all barred.
30. Different considerations arise where a decree directs delivery of possession. In such a case title to the. property and the right to recover possession is declared by the decree itself and the remedy to obtain possession of the property is by executing the decree, but where, as in the present case, the decree is only for rent or for money and no title to any property is created by the decree, the right of the decree-holder to recover possession arises from the sale of the property and not under the decree. His right to possession, therefore, may be enforced either by a suit or by any summary procedure that the law may have provided. The remedies of such a purchaser are, therefore, twofold: one by an application under Order XXI, Rule 95, and another by a regular suit.
31. The result is that all the contentions of the appellants fail and this appeal must be dismissed with costs.